Maltilda Kwashi V. Julius B. Pusmut (2009)

LawGlobal-Hub Lead Judgment Report

ZAINAB ADAMU BULKACHUWA, J.C.A.

By a writ of summons filed on 10th May, 1993 before the High Court of Justice Jos, Plateau State, the respondent as plaintiff initiated this action before the said court against the defendant/appellant wherein by a further Amended Statement of Claim dated 22/6/1998 the following reliefs were claimed;

(1) A DECLARATION that the acts of the 1st defendant constitute a breach of contract thus entitling the plaintiff to cancel or revoke the transaction in respect of No.4 Hwolshe Gigiring Jos as he did.

(2) A declaration that the plaintiff has been is and remains the lawful owner of the property in issue R of O No. PL4741.

(3) An order requiring the 1st defendant to hand over the title documents particularly the R of o No. PL4741, to the plaintiff.

(4) An order compelling the 1st defendant to refund all the sums of money received by her as rent on the plaintiff’s said property, or such other sum as the court may determined (sic) as the rental value of the property with effect from January 1993 to the date of the court’s appointment of an interim manager.

(5) N200, 000.00 general damages for breach of contract/ agreement.

The facts giving rise to this appeal as borne out by the records is to the effect that the plaintiff/respondent was the owner of the property covered by a .Certificate of Occupancy No.4741 lying and situate at NO.4 Hwolshe Giring, Jos a property he acquired while in the employment of Savannah Bank of Nigeria Plc. Sequel to court actions between the plaintiff/respondent and the Savannah Bank, the Bank was granted an order of interim attachment of the plaintiff’s property including the above property. The Bank a owed the plaintiff to secure-a buyer for the property, the defendant was contacted and upon the agreement entered by the parties to this appeal and the Bank, the defendant paid the Bank N450, 000.00 as the purchase price for the property and the Bank obtained the consent of the Governor to assign the said property to the defendant and it was so assigned.

The plaintiff’s case however was that the purchase price was N780, 000.00 and the agreement was that the defendant would pay N450, 000.00 to the Bank and pay the balance of N330, 000.00 to the plaintiff. That the said amount was not paid in full but piecemeal, leaving an outstanding balance of N20, 000.00 as at the time the action was initiated.

Pleadings were filed and exchanged and trial commenced though the defendant was never in court she was represented by counsel. Two witnesses testified for the plaintiff, one was cross-examined by the defendant’s counsel, but before the other witness could be cross-examined counsel withdrew his representation for the defendant. The matter proceeded and after address by plaintiff’s counsel, the lower court entered judgment as per the plaintiff’s claim.

The defendant being dissatisfied has now appealed to this court on six grounds of appeal filed on the 14/3/2000. The defendant as appellant before this court on the 11/5/04 sought and was granted the leave of this court to raise and argue fresh issues in the terms of grounds 1, 5 and 6 of the Notice and Grounds of Appeal and time was enlarged within which the appellant may file brief of argument incorporating issues as raised in the said grounds.

Parties in this appeal filed and exchanged briefs of argument, which they adopted at the hearing of this appeal. In the appellant’s brief as settled by Paschal N. Mammo Esq., the following issues were distilled;

(1) Whether there was proof of service of the processes on the defendant as to justify the conclusion of the trial Judge that the defendant was not interested in the proceedings.

(2) Whether the plaintiff proved his case on the evidence adduced and the documents tendered as to entitle him to the reliefs sought.